Italy's site-blocking law comes into effect: A threat to Pirate Bay or a curse on online freedom?

A new package of regulation has been passed in Italy, cutting the costs and time needed to get sites blocked or copyright infringing work removed from the internet. But is the law as well thought out as it should be?

The new rules, which gives regulator AgCom the power to block users' access to certain websites in the country, received the green light after a five-month long battle. The package of regulations will come into effect on 31 March next year and has received a warm welcome from the entertainment industry while drawing intense criticism from a coalition of lawyers and activists threatening to challenge it in Italy's highest administrative court.

But why are the regulations so controversial? They allow the rights-holders for "digital works" such as videos, songs, photos and games to turn to AgCom when they think a violation of those rights has occurred — until now, besides notice and takedown agreements with major sites, they could only resort to a judicial court.

With the new provisions, if AgCom agrees an Italian-hosted site is infringing rights-holders' copyright, the watchdog can order its hosting provider to remove the digital works in question. Alternatively, it can also ask ISPs to block their customers' access to the site, whether the site is hosted in Italy or not. Providers have three working days to comply with AgCom's decision. In total, from the filing of the complaint to AgCom's verdict, the whole process should last no more than 35 days.

However, in cases where AgCom deemed there is a "serious violation of the economic exploitation of the rights of a digital work" — that is, the rights-holder could lose a substantial amount of money — the procedure can be speeded up to 12 days. In such instances, if the rights-holder's claim is upheld, hosting providers and ISPs are only given two working days to comply.

The entertainment industry was quick to voice its satisfaction. "It's good regulation that gives us a much-needed 12-day fast track system," Enzo Mazza, CEO of Fimi, Italy's music industry lobby group, told ZDNet. "So far, when some international sites were involved we could rely only upon the criminal justice system which meant it was between 30 and 45 days before the access to a site was blocked."

However, some lawyers and activists hold a different view. According to them, by speeding up the process, the new regulations pave the way for unfair verdicts.

"Copyright is a complicate matter and I don't see how AgCom, which doesn't have a dedicated copyright team, could explore all the nuances of certain cases with the necessary diligence in such a short time," Guido Scorza, a lawyer and expert in online law at the forefront of the opposition to the document, said.

Uneven decisions?

All this rush could also result in a restriction of the citizens' rights to freedom of expression, he added. With only five days (or three for the fast track) to file their counter arguments, it's very unlikely that any single user would try to fight for their rights to publish the disputed content, thus leaving the door open for uneven-handed decisions. "If you are a judge who would you rule in favour of, the party that was able to back its position or the one that did not even bother to make a case?" Scorza said.

For its part the entertainment industry downplays the risk. By far the biggest share of rights-holders' claims is currently handled through the notice and takedown agreements between copyright holders and major sites, they say. "The new procedure through AgCom will be used mainly in lieu of the ordinary justice system against the likes of The Pirate Bay, that is, big international platforms that carry on violating copyright on a massive scale. I don't see many individual bloggers being targeted," Mazza said.

Still, even if the practical effects of the regulation may not to be not as dramatic as feared, a more fundamental shift in how the internet is governed is still a source of concern. "I'm afraid that the philosophy behind the regulation is that, since on the internet you can easily and instantly implement technical solution to violations, you can also overlook users' rights to defend themselves. It might be understandable with paedophile pornography but copyright is a more delicate issue," Scorza said. "It is a worrying precedent that tomorrow could be used on political writing."

ISPs too are deeply concerned about the new law since they could risk a fine up to €250,000 if they don't comply with AgCom's rulings in time.

While the final text of the regulation addressed some issues raised about the draft — for example, clarifying the time to comply is "working days", a detail previously missing from the draft — the ISPs, especially smaller ones, are highly dissatisfied with AgCom which, they say, is ignoring the economic burden the regulation will impose on them.

"The regulation is weighted in favour of copyright holders and doesn't even mention the costs that ISPs will bear in order to comply with orders that are likely to become more frequent," Dino Bortolotto, president of ISP association Assoprovider, told ZDNet. "We will devote many man-hours to operations carried out in favour of people that don’t need money. It is as if we are going to work for Elton John for free."

For these reasons Assoprovider said it will challenge the legitimacy of the regulation in front of regional administrative court of Lazio, Italy's highest administrative tribunal, and it won't be alone. "Several small and medium business associations and consumer groups are joining them," said Fulvio Sarzana, a lawyer specialising in telecommunications law who will lead the case. He declined to say who because, he said, "we don't want to give any advantage" to the opposition.